All of us have become totally ineffective in politics; all underlying
assumptions for regulating our political lives have disappeared. We believed
that Governments represent people; that laws will be enacted towards a
transformation of society; that the erring few will be taken care of by
the criminal laws; that the Government constituted from among the representatives
will lay down guidelines for the proper enforcement of laws; that the
representatives of the people will ensure that the Government is disciplined
and really does not turn arbitrary; that all the representative institutions
and the Government are held in check and that we have impartial and independent
judges. From all these persons we expect a measure of austerity and stoic
simplicity, a style of life which will assure the people that they do
not assume that they are a superior category of persons with an entitlement
to rule the people. These assumptions suffered gradual erosion in the
first 25 years of our political independence. The magnitude of erosion
of governance was revealed with the imposition of Emergency in June 1975.
Even the court, that impartial independent institution, succumbed to arbitrary
power in June 1975.

It was under these circumstances that the Janata Government that came
to power thereafter, appointed a number of commissions of inquiry under
the Commissions of Inquiry Act 1956 to acquaint themselves with reasons
for the large-scale erosions in all institutions and instrumentalities
of the State at various levels and the choice of this course appeared
to be appropriate for such large-scale and comprehensive investigation.
The intention, obviously, was to reconstitute governance and not to review
the Constitution, on the basis of the reports of various commissions of
inquiry. This did not take place. But the habit of demanding a judicial
inquiry as a political demand comes very mechanically. Such a demand has
possibilities of acceptance by even an intransigent political Government.

Is the Commission of Inquiry Act a substitute for criminal prosecution?
It is not. It is not part of the criminal justice system. Even if a sitting
sessions judge is appointed under the Act, the powers wielded by him as
a sessions judge will not be available to him. It is a method available
to the Government to gather information with regard to a matter of public
importance. It does not judge the issue as a court does. A commission
of inquiry also cannot be a substitute for investigation under the provisions
of the criminal procedure code. The State has a mandatory duty to investigate
the crime and place the culprit before the court which alone has been
entrusted with the power and the jurisdiction to forfeit life or liberty
in accordance with the procedure established by law. The obligation to
set in motion the criminal justice system on the occurrence of the crime
can neither be substituted by any other device nor dispensed with.

The work of major commissions of inquiry such as the Shah Commission,
Justice Gupta Commission, Justice Mathew Commission, Justice Bhargava
Commission, and others did not deal with specific crimes. The terms of
reference were much wider and general. They were to enable the Government
to restructure administration and governance. Partisan politics by varied
methods torpedoed the efforts. The Shah Commission recommendations, however,
were sought to be implemented. The Janata Government formulated the Special
Courts Bill before enacting it into a law. Care was taken to see that
Parliament did not legislate political vendetta against Indira Gandhi
and the persons who supported the Emergency by having the Bill referred
to the Supreme Court for scrutiny and for its opinion. It had the clearance
from Act.. In fact, the then chief justice of the court expressed the
hope that "Parliamentary democracy will see its halcyon days when
the law will provide for a speedy trial of all offenders who misuse public
office held by them. Purity of ) public life is a desired goal at all
times and in all situations, Emergency or no Emergency. " Clause
4 of the preamble to the act made its intentions clear. It was to be a
permanent Act. It, for the first time, declared that the people who hold
offices are trustees in whom people repose confidence and that these persons
who hold such positions, should they commit breach of trust, will be offenders
under the Act. When V.C. Shukla approached the Supreme Court under the
provisions of this Act, the court pointed out that the special courts
Act is a permanent measure. Despite the Preamble, the circumstances which
this Act was passed and the pronouncement of the Court this act was repealed
by parliament without obviously any debate and for strange reasons. In
the statement of objects and reasons to the Repealing Act, Parliament
was told that the Act was brought into force (a) to prosecute Indira Gandhi
for refusal to appear before the Shah Commission and take oath and (b)
the Delhi High Court had given 12 grounds for declaring the Shah Commission
infructuous. Thus the statue was rolled back into oblivion in 1982.

We failed to lay down traditions of good Government. The Commission of
Inquiry Act 1956 was popularized by the Janata Government and is now employed
to beguile the public. That is when we find justices Thakkar - Natarajan
wailing about the ineffectiveness of The Commissions of Inquiry Act and
bemoaning the wastefulness of time and material resources in these futile
exercises. These two Supreme Court judges were asked to inquire into the
appointment of Fairfax Group Inc. to investigate into by certain companies
and this instrument of investigation to a foreign investigative agency
became a contentious issue in parliament. This led to the appointment
of the two-judge commission in 1987. They found the 1956 Act "ineffective
and toothless". They devoted one full chapter on the inadequacies
of the Act. In the course of their proceedings they were confronted with
scurrilous attacks on their work by some newspapers, and some persons
would not respond to the summons issue by the Commission. They argued
that as sitting judges they carry the contempt powers with them wherever
they went on this kind of assignment. They also wanted summary powers
of prosecution and punishment for refusal to comply with the orders of
directions issued by them under the relevant provisions of the Penal Code.
They wanted a deterrent punishment for willful disobedience of orders
of a public authority. In this argument what has to be noted is their
despair at the emerging trends. The attempt to reform and restructure
Government and a administration ended in a dismal failure and this gave
impetus to flouting of norms, administration aligning with or sponsoring
and aiding criminals and through them commit crimes with impunity. The
commissions set up to inquire into crimes, individual and collective,
met the same fate.

The Commissions of Inquiry Act 1956 has no power to compel persons to
come and give evidence before it. Its report or the evidence given before
it is not relevant in a criminal trial. It has no power to give definite
judgement. But it has its political uses in democracy. It can postpone
political protest to the point of attrition. It helps whitewashing crimes
and culpable negligence of the government and its agencies. For instance,
custodial deaths of suspects have very often been given out as suicides
while in police custody. The commission set up to go into the issues raised
appointing Fairfax came to nothing. The commission headed by Mr. Jain
to look into security lapses resulting in the assassination of Rajiv Gandhi
came to nothing.

The Tehelka disclosures have become the preoccupation of the press and
the electronic media. The ruling party, to escape the parliamentary responsibility
of relinquishing power, has announced an inquiry by a sitting judge of
the Supreme Court. How does a sitting judge make any difference if the
mechanism provided by the Commission of Inquiry Act is not adequately
equipped to investigate and punish the guilty? What is there to investigate
further, except the tapes recorded by Tehelka. How is a judge sitting
or retired whether of the high court or the Supreme Court better equipped
or competent in investigating facts than an experienced police officer
with a modicum of integrity? Has the commission of inquiry the power to
arrest suspects to prevent them from tampering with evidence? Has the
commission the power to prevent ministers or the public spirited men sponsored
by these ministers from unleashing a PIL in the Supreme Court and stall
the proceedings of the commission. Would it not be to make do with the
existing machinery so that they may proceed with their business in the
usual manner, register the crime, apprehend the accused and produce them
before court and ask for police custody for further investigation for
the conspiracy to cheat the government, by receiving kickbacks and thereby
imperil the defence of the country. These are sufficient grounds for detention
under the National Security Act. For very nominal reasons people are arrested
in this country and prosecuted. Let us not forget that we have the recent
history of a magistrate convicting a Prime Minister and his appeal is
pending. Why this individual discrimination in favour of these? Why should
there be a futile inquiry at enormous cost to the public exchequer, particularly
when we have before us the unrewarding past experience of such exercises?